[Federal Register Volume 72, Number 153 (Thursday, August 9, 2007)]
[Rules and Regulations]
[Pages 44763-44765]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-15422]


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SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404 and 416

[Docket No. SSA 2007-0036]
RIN 0960-AG49


Amendment to the Attorney Advisor Program

AGENCY: Social Security Administration.

ACTION: Interim final rule with request for comments.

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SUMMARY: We are announcing this interim final rule to modify, on a 
temporary basis, the prehearing procedures we follow in claims for 
Social Security disability benefits or supplemental security income 
(SSI) payments based on disability or blindness. Under the interim 
final rule, we may allow certain attorney advisors, under managerial 
oversight, to conduct certain prehearing proceedings, and where the 
documentary record developed as a result of these proceedings warrants, 
issue decisions that are wholly favorable to the parties to the 
hearing.

DATES: Effective date: This rule is effective August 9, 2007. Comment 
date: To be sure that your comments are considered, we must receive 
them no later than October 9, 2007.

ADDRESSES: You may give us your comments by: Internet through the 
Federal eRulemaking Portal at http://www.regulations.gov; e-mail to 
[email protected]; telefax to (410) 966-2830; or letter to the 
Commissioner of Social Security, P.O. Box 17703, Baltimore, MD 21235-
7703. You may also deliver them to the Office of Regulations, Social 
Security Administration, 107 Altmeyer Building, 6401 Security 
Boulevard, Baltimore, MD 21235-6401, between 8 a.m. and 4:30 p.m. on 
regular business days. Comments are posted on the Federal eRulemaking 
Portal, or you may inspect them on regular business days by making 
arrangements with the contact person shown in this preamble.

FOR FURTHER INFORMATION CONTACT: Marilyn Hull, Social Security 
Administration, 5107 Leesburg Pike, Falls Church, VA 22041-3260, 703-
605-8500 for information about this notice. For information on 
eligibility or filing for benefits, call our national toll-free number, 
1-800-772-1213 or TTY 1-800-325-0778, or visit our Internet site, 
Social Security Online, at http://www.socialsecurity.gov.

SUPPLEMENTARY INFORMATION:

Electronic Version

    The electronic file of this document is available on the date of 
publication in the Federal Register at http://www.gpoaccess.gov/fr/index.html.

Explanation of Changes

    We are dedicated to providing high-quality service to the American 
public. Today and for the foreseeable future, we face significant 
challenges in our ability to provide the level of service that 
disability benefit claimants deserve because of the significantly 
increased number and complexity of these benefit claims. Consequently, 
we are publishing a temporary modification to the procedures we follow 
in the administrative law judge (ALJ) hearings process in claims for 
Social Security disability benefits or SSI payments

[[Page 44764]]

based on disability or blindness. This temporary modification will help 
us provide accurate and timely service to claimants for Social Security 
disability benefits and SSI payments based on disability or blindness. 
With this modification, we are permitting attorney advisors, under 
managerial oversight, to conduct certain prehearing proceedings to help 
develop claims, and issue fully favorable decisions in appropriate 
claims before a hearing is conducted. We expect that this change will 
help us reduce the very high number of pending cases at the hearing 
level by enhancing claims development before the hearing and by 
permitting attorney advisors to issue fully favorable decisions in 
appropriate claims. This temporary modification applies only to claims 
processed under parts 404 and 416 of our regulations; it does not apply 
to claims processed under part 405 of our regulations, which concerns 
only disability claims filed in the Boston region after July 31, 2006. 
Parts 404 and 416 of our regulations concern disability cases in every 
area outside the Boston region and non-disability cases in every 
location.
    Generally, when a claim is filed for Social Security disability 
benefits or SSI payments based on disability or blindness, a State 
agency makes the initial and reconsideration disability determination 
for us. ALJs conduct hearings after we have made a reconsideration 
determination. Under this interim final rule, attorney advisors who 
serve as decision writers or managers within the hearing operation may 
conduct certain prehearing proceedings and, where appropriate, issue 
decisions that are wholly favorable to claimants and any other party to 
the hearing.
    Attorney advisors have performed these duties in the past. In June 
1995, we announced final rules establishing the attorney advisor 
program for a limited period of 2 years. 60 FR 34126 (June 30, 1995). 
The program's success prompted us to extend the program several times, 
until it finally ended in April 2001. 62 FR 35073 (June 30, 1997), 63 
FR 35515 (June 30, 1998), 64 FR 13677, 64 FR 51892.
    Requests for hearings have significantly increased in recent years, 
and we expect even more such requests in the future due to the 
projected increase in disability claims as the baby boomers move into 
their disability-prone years. Additionally, the very high number of 
pending cases at the hearing level has grown to an alarming level. We 
plainly must do everything that we can to address this workload. This 
interim final rule is an important part of our efforts designed to help 
us decide these cases more efficiently.
    These regulations will allow us to expedite the processing of cases 
pending at the hearing level without infringing on the right of a 
claimant to a hearing before an ALJ. The attorney advisor's conduct of 
certain prehearing proceedings will not delay the scheduling of a 
hearing before an ALJ. If the prehearing proceedings are not concluded 
before the hearing date, the case will be sent to the ALJ unless a 
decision wholly favorable to the claimant and all other parties is in 
process, or the claimant and all other parties to the hearing agree in 
writing to delay the hearing until the prehearing proceedings are 
completed.
    Prehearing proceedings may be conducted by the attorney advisor 
under this interim final rule if one of the following criteria is met: 
new and material evidence is submitted, there is an indication that 
additional evidence is available, there is a change in the law or 
regulations, or there is an error in the file or some other indication 
that a wholly favorable decision could be issued. A decision by an 
attorney advisor will be mailed to all parties. The notice of decision 
will state the basis for the decision and advise the parties that an 
ALJ will dismiss the hearing request unless a request to proceed with 
the hearing is made by a party within 30 days after the date the notice 
of the decision was mailed.
    These procedures will remain in effect for a period of time not to 
exceed 2 years from the effective date of this interim final rule, 
unless we terminate or extend them by publication of a final rule in 
the Federal Register. If we publish such a final rule, we need not 
request further public comment.

Clarity of These Rules

    Executive Order 12866, as amended, requires each agency to write 
all rules in plain language. In addition to your substantive comments 
on these interim final rules, we invite your comments on how to make 
them easier to understand.
    For example:
    Have we organized the material to suit your needs?
    Are the requirements in the rules clearly stated?
    Do the rules contain technical language or jargon that isn't clear?
    Would a different format (grouping and order of sections, use of 
headings, paragraphing) make the rules easier to understand?
    Would more (but shorter) sections be better?
    Could we improve clarity by adding tables, lists, or diagrams?
    What else could we do to make the rules easier to understand?

Regulatory Procedures

    Pursuant to sections 205(a), 702(a)(5), and 1631(d)(1) of the 
Social Security Act, 42 U.S.C. 405(a), 902(a)(5), and 1383(d)(1), we 
follow the Administrative Procedure Act (APA) rulemaking procedures 
specified in 5 U.S.C. 553 in the development of our regulations. The 
APA provides exceptions to its prior notice and public comment 
procedures when an agency finds there is good cause for dispensing with 
such procedures on the basis that they are impracticable, unnecessary, 
or contrary to the public interest.
    We have determined that, under 5 U.S.C. 553(b)(B), good cause 
exists for issuing this regulatory change as an interim final rule. 
However, we are inviting public comment on the interim final rule and 
will consider any responsive comments we receive within 60 days of the 
publication of the interim final rule.
    We are not changing the substantive provisions of the attorney 
advisor program, which still appear in the regulations. We are merely 
re-enacting the provisions that we have used in the past. The 
substantive rules were promulgated with notice and public comment 
procedures, with a notice of proposed rulemaking published on April 14, 
1995 (60 FR 19008) and final rules published on June 30, 1995 (60 FR 
34126). Accordingly, we find that an additional opportunity for public 
comment prior to re-enactment of this program is unnecessary.
    We also find that it would be contrary to the public interest not 
to effectuate these rules as quickly as we can. The attorney advisor 
program will help, along with a series of other initiatives that we are 
contemplating, reduce the pending hearing requests to a manageable 
level. We must address the hearing backlog as quickly as possible. If 
we do not address this issue now, the situation could easily worsen, 
possibly resulting in over one million cases awaiting a hearing within 
3 years. Of course, such a state of affairs is acceptable neither to us 
nor to the public at large. For these reasons, we believe we must take 
swift action and implement this rule as quickly as possible.

Executive Order 12866, as Amended

    We have consulted with the Office of Management and Budget (OMB) 
and determined that this rule meets the criteria for a significant 
regulatory action under Executive Order 12866, as

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amended. Thus, it was reviewed by OMB.

Regulatory Flexibility Act

    We certify that this interim final rule will not have a significant 
economic impact on a substantial number of small entities as it affects 
only States and individuals. Therefore, a regulatory flexibility 
analysis as provided in the Regulatory Flexibility Act, as amended, is 
not required.

Paperwork Reduction Act

    This rule will impose no additional reporting or recordkeeping 
requirements requiring OMB clearance.

Federalism Impact and Unfunded Mandates Impact

    We have reviewed this rule under the threshold criteria of 
Executive Order 13132 and the Unfunded Mandates Reform Act and have 
determined that it does not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, on the distribution of power and responsibilities among the 
various levels of government, or on imposing any costs on State, local, 
or tribal governments. This rule does not affect the roles of the 
State, local, or tribal governments. However, the rule takes 
administrative notice of existing statutes governing the roles and 
relationships of the State agencies and SSA with respect to disability 
determinations under the Act.

(Catalog of Federal Domestic Assistance Program Nos. 96.001, Social 
Security--Disability Insurance; 96.002, Social Security--Retirement 
Insurance; 96.004, Social Security--Survivors Insurance; 96.006, 
Supplemental Security Income.)

List of Subjects

20 CFR Part 404

    Administrative practice and procedure; Blind, Disability benefits; 
Old-Age, Survivors, and Disability Insurance; Reporting and 
recordkeeping requirements; Social Security.

20 CFR Part 416

    Administrative practice and procedure; Aged, Blind, Disability 
benefits, Public assistance programs, Reporting and recordkeeping 
requirements; Supplemental Security Income (SSI).

    Dated: May 22, 2007.
Michael J. Astrue,
Commissioner of Social Security.

0
For the reasons set out in the preamble, we are amending subpart J part 
404 and subpart N of part 416 as set forth below:

PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE 
(1950- )

Subpart J--[Amended].

0
1. The authority citation for subpart J of part 404 continues to read 
as follows:

    Authority: Secs. 201(j), 204(f), 205(a), (b), (d)-(h), and (j), 
221, 223(i), 225, and 702(a)(5) of the Social Security Act (42 
U.S.C. 401(j), 404(f), 405(a), (b), (d)-(h), and (j), 421, 423(i), 
425, and 902(a)(5)); sec. 5, Pub. L. 97-455, 96 Stat. 2500 (42 
U.S.C. 405 note); secs. 5, 6(c)-(e), and 15, Pub. L. 98-460, 98 
Stat. 1802 (42 U.S.C. 421 note); sec. 202, Pub. L. 108-203, 118 
Stat. 509 (42 U.S.C. 902 note).


0
2. Amend Sec.  404.942 by revising the first sentence of paragraph (a) 
and paragraph (g) to read as follows:


Sec.  404.942  Prehearing proceedings and decisions by attorney 
advisors.

    (a) General. After a hearing is requested but before it is held, an 
attorney advisor may conduct prehearing proceedings as set out in 
paragraph (c) of this section. * * *
* * * * *
    (g) Sunset provision. The provisions of this section will no longer 
be effective on August 10, 2009, unless we terminate them earlier or 
extend them beyond that date by notice of a final rule in the Federal 
Register.

PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND 
DISABLED

Subpart N--[Amended]

0
3. The authority citation for subpart N continues to read as follows:

    Authority: Secs. 702(a)(5), 1631, and 1633 of the Social 
Security Act (42 U.S.C. 902(a)(5), 1383, and 1383b); sec. 202, Pub. 
L. 108-203, 118 Stat. 509 (42 U.S.C. 902 note).


0
4. Amend Sec.  416.1442 by revising the first sentence of paragraph (a) 
and paragraph (g) to read as follows:


Sec.  416.1442  Prehearing proceedings and decisions by attorney 
advisors.

    (a) General. After a hearing is requested but before it is held, an 
attorney advisor may conduct prehearing proceedings as set out in 
paragraph (c) of this section. * * *
* * * * *
    (g) Sunset provision. The provisions of this section will no longer 
be effective on August 10, 2009, unless we terminate them earlier or 
extend them beyond that date by notice of a final rule in the Federal 
Register.

 [FR Doc. E7-15422 Filed 8-8-07; 8:45 am]
BILLING CODE 4191-02-P